(m) Graham v. Massey, (1883) 23 Ch. D. 743 ; 52 L. J. Ch. 750.

(n) Withy v. Cottle, (1823) 1 S. & S. 174; Regent's Canal Co. v. Ware, (1857) 23 Beav. 575 ; Cogent v.

Gibson, (18G4) 33 Beav. 557.

(o) Clifford v. Turrell, (1841) 1 Y. & C. C. C. 138 ; aff. (1845) 9 Jur. C33. As to the small amount of the purchase-money being no bar to the jurisdiction, see Bennett v. Smith, (1852) K, Jur. 421.

(p) See Shaw v. Fisher, (1855) 5 D. M. &; G. 596 ; Cheale v. Kenward, (1858) 3 D. & J. 27; Wynne v. Price, (1849) 3 De G. & S. 310; see Humble v. Langston, (1841) 7 M. & W. 517 ; Walker v. Bartlett, (1856) 18C.B.845.

(q) Webb v. Direct London mid Portsmouth R. Co., (1851) 9 Ha. 129, 139; rev. on the general question, (1852) 1 D. M. &G. 521.

In some of the earlier cases specific performance of contracts to build and execute works was decreed in Equity, where it would not have been in later times (r) ; and there is now no longer any doubt that, as a general rule, the Court will not at the present time enforce specific performance of them (r). An exception, however, from this rule has been recognised, and it has for some time been held that, in order to bring himself within that exception, a plaintiff must establish three things (s) : - The first is, that the building work, of which he seeks to enforce the performance, is defined by the contract; that is to say, that the particulars of the work are so far definitely ascertained that the Court can sufficiently see what is the exact nature of the work of which it is asked to order the performance (s). The second is, that the plaintiff has a substantial interest in having the contract performed, which is of such a nature that he cannot adequately be compensated for breach of it by damages (s). The third is, that the defendant has by the contract obtained possession of land on which the work is contracted to be done (t).

As to building contracts, general rule and exception;

Where the agreement was to grant a lease, so soon as the lessee should have built a house of a specified value "according to a plan to be submitted to and approved by the lessor," which the lessee agreed to do, and to take the lease, specific performance, at the suit of the lessor, was refused (w). In a later case, where there was an agreement for a lease, with a stipulation that the lessor should put the house "in substantial and decorative repair," the Court decreed specific performance at the suit of the lessee, with an inquiry whether the repairs had been properly executed; and if not, then an inquiry as to damages (x). Here, however, it must be noticed, that the Court did not affect to enforce the agreement to repair. Thus, too, where A. agreed to sell a piece of land to B., and A. was to make a new road of which B. was to have the user, and B. was to expend 3,000 in building a house upon the land, it was held that there was nothing in the nature of the contract to prevent its being specifically enforced (y). So, where a railway company agreed with a landowner, through whose estate their line would pass, to construct and maintain a siding, with all necessary approaches for public use, the Court decreed specific performance of the contract, so far as it related to the construction of the siding; and a stipulation in the agreement as to the proper maintenance of the work when constructed was held to be no reason for withholding relief (z). So, where a railway company in purchasing land agreed with the vendor that a portion of it should be "for ever thereafter used and employed as and for a first-class station or place for the purpose of taking up and setting down passengers," the vendor was held entitled to a decree ordering the company to supply the necessary accommodation for a first-class station (to be ascertained at Chambers) (a). So, too, in a suit for specific performance, a railway company was compelled to construct a drain under their line for the convenience of an adjoining proprietor (b). And a purchaser of land from a municipal authority has been ordered to erect houses in pursuance of the contract on the purchased land, in accordance with plans already approved by the authority (e).

So, too, partly on the ground of the incapacity of the Court to execute the contract, and partly in consequence of the instances.

(r) Fry, 4th ed. 41.

(a) Wolverhampton Corp. v. Emmons, 1901, 1 K. B. 515, 524, 525 ; 70 L. J. K. B. 429; Oxford Corp. v. Crow, 1893, 3 Ch. 535.

(t) Wolverhampton Corp. v. Emmons, sup.; Pricey. Corp. of Penzance, (1845) 4 Ha. 506 ; Storer v. G. W. P. Co.,

(1842) 2 Y. & C. C. C. 48 ; 12 L. J. Ch. 65.

(u) Brace v. Wehnert, (1858) 25 Beav. 348 ; Norris v. Jackson, (1860) U. &H. 319.

(x) Samuda v. Lawford, (1862) 4 Gif. 42.

Contract for sale of goodwill not enforced, except in what cases.

(y) Wells v. Maxwell, (1863) 32 Beav. 408 ; afr. (1863) 9 Jur. N. S. 1021 ; and see Citbitt v. Smith, (1864) 10 Jur. N. S. 1123; Hepburn v. Leather, (1884) 50 L. T. C60.

(z) Moseleyv. Virgin, (179G)3Ves. 184 ; Lylton v. G. X. It. Co., (1856) 2 K. & J. 394 ; see, too, Sanderson v. Cockermouth It. Co., (1849) 11 Beav. 497; Greene v. West Cheshire JR. Co., (1871) 13 Eq. 44; 41 L. J. Ch. 17; Firth v. M. R. Co., (1875) 20 Eq. 100; 44 L. J. Ch. 313; Fortescue v.

Lostwithiel, §c. R. Co. (which see for tho form of judgment), 1894, 3 Ch. 621, 640; 64 L. J. Ch. 37.

(a) Hood v. X. E. It. Co., (1870) 5 Ch. 525 ; and see Burnett v. G. X. of Scotland It. Co., (1885) 10 A. C. 147 | 54 L. J. Q. B. 631.

(b) Powell v. South Vales It. Co., (1855) 1 Jur. N. S. 773.

(c) Wolverhampton Corp. v. Emmons, 1901, 1 K. B. 515; 70 L. J. K. B. 429.

Uncertainty of the subject-matter, specific performance of an agreement for the sale of the good-will of a business is refused (d); except in cases where the good-will is sold in connection with the property to which it is attached (e).

The Court will enforce a contract to let from year to year (/), as also an agreement for a still shorter tenancy in a proper case (g), but it will not, except under very special circumstances, enforce an agreement for a lease, when the term has expired by effluxion of time (h).

Contract for a yearly-tenancy enforced.

It is now, as we have seen (i), well settled that where land is taken by a company under their compulsory provisions, mere service of notice to treat, though it entitles the landowner to proceed by mandamus, does not of itself constitute an agreement which can be specifically enforced in Equity. But where the contract is completed by the ascertainment of the purchase-money, whether by means of the machinery of the L, C. C. Act (k), or otherwise (/), the Court will exercise its jurisdiction and decree specific performance at the suit of either party ; and the fact that there is an alternative remedy by way of mandamus is, it is conceived, no bar to the remedy by way of specific performance. But, in one case, where the company might have obtained the same advantage by proceeding under their Act, they were not, even though successful, allowed their costs of a suit for specific performance (m). Where a railway company takes land by private contract, the jurisdiction of the Court to enforce particular stipulations as to easements, etc., is not ousted by the provisions of the Kail way Acts (n).

Specific performance by and against a railway company.

(d) See Baxter v. Conolly, (1820) 1 J. & W. 576 ; Coslake v. Till, (1826) 1 Rus. 376.

(e) See Barley v. Whitaker, (1857) 4 Dr. 134, 140.

(/) Lever v. Koffler, 1901, 1 Ch. 543 ; 70 L. J. Ch. 395.

(g) Lever v. Koffler, sup. ; Be Brassacv. Martyn, (1863) 11 W. R. 1020.

(h) Walters v. Northern Coal M. Co., (1855) 5 D. M. & G. 629.

(i) See sup., pp. 277, 1020 et seq.

{k) Mason v. Stokes Bay Co., (1862) 11 W. R. SO ; Harding v. Metrop. B. Co., (1872) 7 Ch. 154 ; 41 L. J. Ch. 371; Nash v. Worcester Improvement Commrs., (1855) 1 Jur. N. S. 973.

(/) Inge v. Birmingham and S. V. B. Co., (1853) 3 D. M. & G. 658 ; Regent's Canal Co. v. Ware, (1857) 23 Beav. 575; Watts v. Watts, (1873) 17 Eq. 217; 43 L. J. Ch. 77.

(m) Begenfs Canal Co. v. Ware, sup.

Formerly, if a plaintiff proceeded both at Law and in Equity in respect of the same subject-matter, he might, by order of course, be compelled to elect between his action and suit (o) ; but now, when Law and Equity are concurrently administered in every Court, a plaintiff may at the same time obtain both legal and equitable relief in respect of the same subject-matter.

Formerly plaintiff could not proceed at once at Law and in Equity.

And although the agreement may in itself vest in the purchaser the interest contracted for, e.g., as amounting at Law to a present demise or assignment, yet, if it appear on its face that it is the intention of the parties that a further instrument should be executed, the Court will decree specific performance of the agreement in that particular (p). And the Court will decree specific performance of a special stipulation in the agreement, e.g., that the vendor shall give a bond against carrying on a specified trade within certain limits (q) : that is, if the agreement be one which has been performed, or can be enforced, in all its other material terms (r).

Specific performance, when decreed, although contract may vest estate in purchaser.

Lastly, we may remark that the granting or withholding of relief in suits for specific performance is always a matter of discretion with the Court (s), - a discretion, however, which is to be exercised, not arbitrarily, but according to fixed and settled rules; and to be regulated upon grounds which will make it judicial (t).

The relief is purely discretionary.

(n) Sanderson v. Coekermouth JR. Co., (1850) 2 H. & Tw. 327 ; Lytton v. G. N. R. Co., (1856) 2 K. & J. 394.

(o) Royle v. Wynne, (1841) Cr. & P. 252 ; Anon., (1852) 20 L. T. (O. S.) 60.

(p) Fenner v. Hepburn, (1843) 2 Y. & C. C. C. 159.

(q) Avery V. Lang ford, (1854) Kay, 663 ; and see sup. p. 1027.

(r) South Wales R. Co. v. Wythes,

(1854) 5D.M.& G. 880 ; Pollard v. Clayton, (1855) 1 K. & J. 462.

(s) Cox v. Middleton, (1854) 2 Dr. 209 ; 23 L. J. Ch. 618 ; Pyrke v. Waddingham, (1852) 10 Ha. 1 ; Watson v. Marston, (1853) 4 D. M. & G. 230; Bennett v. Smith, (1852) 16 Jur. 421.

(t) White v. Damon, (1802) 7 Ves. 30, 35; Haywood v. Cope, (1857) 25 Beav. 140, 151 ; 27 L. J. Ch. 468.